Pasley v. Caruso, et al

Filing 119

ORDER finding as moot 42 Motion for Order to Show Cause; 43 Motion for Preliminary Injunction and 43 for TRO; denying 48 Motion for Summary Judgment; finding as moot 54 Motion for Writ; adopting in part 107 Report and Recommendation; gra nting in part and denying in part 111 Motion to Extend ; granting in part and denying in part 118 Motion to Extend, referring matter to the Courts pro bono program for appointment of counsel and staying case pending whether counsel is appointed. Signed by District Judge Arthur J. Tarnow. (MLan)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
LYNN PASLEY,

Civil Case No. 10-11805
Plaintiff,

SENIOR U.S. DISTRICT JUDGE
ARTHUR J. TARNOW

v.
PATRICK LNU ET AL.,
Defendants.
/

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTIONS
FOR EXTENSION OF TIME [111] and [118], ADOPTING IN PART MAGISTRATE
JUDGE’S REPORT & RECOMMENDATION [107], TERMINATING AS MOOT
PLAINTIFF’S MOTION FOR ORDER TO SHOW CAUSE [42], TERMINATING AS
MOOT PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION [43],
TERMINATING AS MOOT PLAINTIFF’S MOTION FOR WRIT [54], OVERRULING
DEFENDANTS’ OBJECTION [116], DENYING DEFENDANTS ELKINS, LANGE, AND
UNOLD’S MOTION FOR SUMMARY JUDGMENT [48], and STAYING CASE
PENDING APPOINTMENT OF PRO BONO COUNSEL
Before the Court are Plaintiff’s Motions for Extension of Time [111] and [118, filed
February 22, 2012 and March 7, 2012 respectively. Plaintiff requests an extension of time to file
objections to the Magistrate Judge’s Report and Recommendation (R&R) [107] issued on February
10, 2012.
Motion for Extension of Time
Plaintiff’s request for an extension of time to object to the R&R is be granted in part and
denied in part. Plaintiff’s request is denied as to the sections of the R&R that are now moot and as
to the recommendation as to Defendants’ Motion [48], which will be discussed below. Plaintiff’s
request for an extension of time is granted in all other respects.
Plaintiff’s Motion for Order to Show Cause [42] and Plaintiff’s Motion for Preliminary
Injunction [43] involve Plaintiff’s requests that Defendants provide proper medical care for him
while he is incarcerated. These motions are now moot because Plaintiff is no longer incarcerated.
See Pl.’s Mot. [111] (stating that Plaintiff has been released from prison).

Plaintiff’s Motion for Writ [54] is also moot. Plaintiff requests that certain Defendants be
served. The Magistrate Judge notes in her R&R that those Defendants have already been served.
Therefore, a writ is unnecessary.
Defendants Elkins, Lange, and Unold’s Motion for Summary Judgment
The Magistrate Judge also recommended that Defendants Elkins, Lange, and Unold’s Motion
for Summary Judgment [48] be denied. Defendants filed an Objection [116] to the Magistrate
Judge’s recommendation regarding Motion [48].
Defendants raise four objections: 1) that the Magistrate Judge used the wrong standard of
review; 2) that Plaintiff did not create an issue of fact regarding his medical condition; 3) that the
Plaintiff did not create a question of fact with respect to the subjective component of his claim; and
4) that Defendants are entitled to qualified immunity. See Obj. [116]. The Court disagrees and
overrules Defendant’s Objection [116]. Because this ruling is in Plaintiff’s favor, Plaintiff’s Motion
for Extension of Time [111] is denied as to the recommendation regarding Defendants’ Motion for
Summary Judgment [48].
The standard of review set forth in Federal Rule of Civil Procedure 72(b) governs this
dispositive matter. Fed. R. Civ. P. 72(b). Pursuant to that rule, “[t]he district judge in the case must
determine de novo any part of the magistrate judge’s disposition that has been properly objected to.”
Id. at 72(b)(3); see also 28 U.S.C. § 636(b)(1)(C).
Objection #1
Defendants’ first objection is a failing one. Defendants argue that Plaintiff’s failure to
submit a separate affidavit or declaration to his response to Defendants’ Summary Judgment Motion
warrants a grant of the motion. Defendants point to the Magistrate Judge’s reliance on the
Complaint and conclude that the Magistrate Judge erred by relying on the Complaint.
Defendants’ argument has been expressly rejected by the Sixth Circuit. “[S]ince plaintiff’s
complaint was verified, to the extent that the allegations therein are based on personal knowledge,
it satisfies the requirements of [Rule 56] as an opposing affidavit.” Hooks v. Hooks, 771 F.2d 935,
945-46 (6th Cir. 1985) (internal citations omitted).
Defendants offer what they call an example of the Magistrate Judge’s error. See Obj. [116],
at 3. A reading of the example, however, simply reveals a fact issue that is in dispute. Plaintiff
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stated, based on his personal knowledge, that Officer Lange came to speak to him after Nurse Rider
informed him of Plaintiff’s issue. Am. Compl. [27], at ¶ 43. Defendants cite Officer Lange’s
deposition denying this allegation. Obj. [116], at 3. This is a classic factual dispute that is to be
decided by the fact-finder.
Objection #2
The second objection similarly fails. Defendants argue that the Magistrate Judge erred by
recommending that a fact issue exists as to whether Plaintiff’s medical condition was sufficiently
serious. Obj. [116], at 3. Defendants argue that “Plaintiff fails to make a showing to the Court what
his medical problem was at the time the State Defendants allegedly ignored his medical needs.”
Obj. [116], at 4.
Defendants’ objection is focused on Plaintiff proving the ultimate issue that is to be decided
by a fact-finder, which is inappropriate at the summary judgment phase. Defendants’ objections
amount to a summary of arguments and evidence that go against Plaintiff’s claims. Defendants have
not shown that there is no genuine issue of material fact. Instead, they have highlighted the fact
issues that are explained in the R&R and in their own objection. Summary judgment as to the
seriousness of Plaintiff’s medical condition would be improper.
Objection #3
Defendants’ third objection addresses the subjective component of Plaintiff’s claim. See
Obj. [116], at 6.

Defendants simply state the conclusion that the Magistrate Judge’s

recommendation was incorrect. This Court disagrees and adopts the Magistrate Judge’s conclusion
and analysis as to this issue.
Objection #4
Defendants’ fourth objection is that the state defendants are entitled to qualified immunity
based on Defendants’ first three objections. See Obj. [116], at 6-7. Because the Court disagrees
with Defendants as to the other objections, Defendants’ fourth objection is similarly denied.
Defendants’ suggestion that this case is simply about looking for skin cream is off base and
is no grounds for rejecting the Magistrate Judge’s recommendation.
Considering that this ruling, overruling Defendants’ Objection [116], is in Plaintiff’s favor,
an extension of time to object to the Magistrate Judge’s recommendation as to Motion [48] is denied
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and the R&R is adopted as to this issue. Plaintiff will be afforded an extension to object to the parts
of the R&R that have not been adopted by this order.
Appointment of Counsel
Although there is no right to counsel in civil cases, this Court will explore whether pro bono
counsel will represent Plaintiff. Plaintiff would benefit from the assistance of counsel.
The Court notes that “[a]ppointment of counsel in a civil case is not a constitutional right.”
See Lavado v. Keohane, 992 F.2d 601, 605 (6th Cir. 1993). However, in its discretion, a court may
appoint an attorney to represent any person unable to afford counsel, and here, Plaintiff’s affidavit
[5] demonstrates sufficient financial need to support the application, even considering his recent
release from prison. See 28 U.S.C. § 1915(e).
Therefore, the Court being fully advised in the premises,
IT IS HEREBY ORDERED that Plaintiff’s Motions for Extension of Time [111] and [118]
are GRANTED IN PART and DENIED IN PART. Plaintiff may file an objection within
THIRTY DAYS of the date that the stay is lifted in this case.
IT IS FURTHER ORDERED that Plaintiff’s Motion for Order to Show Cause [42] is
TERMINATED AS MOOT.
IT IS FURTHER ORDERED that Plaintiff’s Motion for Preliminary Injunction [43] is
TERMINATED AS MOOT.
IT IS FURTHER ORDERED that Plaintiff’s Motion for Writ [54] is TERMINATED AS
MOOT.
IT IS FURTHER ORDERED that Defendants’ Objection [116] is OVERRULED.
IT IS FURTHER ORDERED that Report & Recommendation [107] is ADOPTED IN
PART and Defendants’ Motion for Summary Judgment [48] is DENIED.
IT IS FURTHER ORDERED that this matter is referred to the Court’s pro bono program
for the appointment of counsel.
IT IS FURTHER ORDERED that if reasonable efforts to assign pro bono counsel are
unsuccessful, this matter will be returned to the Court’s docket, and Plaintiffs may proceed pro se.

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IT IS FURTHER ORDERED that further proceedings in this case are hereby STAYED
pending whether counsel is appointed or Plaintiffs proceed pro se.
SO ORDERED.
s/Arthur J. Tarnow
ARTHUR J. TARNOW
SENIOR U.S. DISTRICT JUDGE
Dated: March 22, 2012

______________________________________________________________________________
CERTIFICATE OF SERVICE
I hereby certify on March 22, 2012 that I electronically filed the foregoing paper with the
Clerk of the Court sending notification of such filing to all counsel registered electronically. I hereby
certify that a copy of this paper was mailed to the following non-registered ECF participants on
March 22, 2012: Lynn Pasley.
s/Michael E. Lang
Deputy Clerk to
District Judge Arthur J. Tarnow
[phone]

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